Turner v State of Victoria

[2010] FMCA 936

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TURNER v STATE OF VICTORIA & ANOR [2010] FMCA 936

HUMAN RIGHTS – Whether heads of agreement settling a matter should be made into an order of the Court – original application in MLG91/2010 settled.

Federal Magistrates Court Rules 2001, rr.13.04, 16.01
Federal Court Rules, Order 23 sub-rule.9(1)(c)

Applicant: JOSHUA TURNER (BY HIS NEXT FRIEND, ANJA TURNER)

First Respondent: STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES)

Second Respondent: ONCALL PERSONNEL & MANAGEMENT SERVICES PTY LTD

File Number: MLG 91 of 2010

Judgment of: Turner FM

Hearing date: 4 November 2010

Date of Last Submission: 12 November 2010

Delivered at: Melbourne

Delivered on: 12 November 2010

REPRESENTATION

Counsel for the Applicant: Mr Perkins

Solicitors for the Applicant: Access Law

Counsel for the First Respondent: Ms Benson

Solicitors for the First Respondent: Department of Human Services

Counsel for the Second Respondent: Ms Nunnink

Solicitors for the Second Respondent: Marsh & Maher

ORDERS

THE COURT FINDS THAT:

1. The Heads of Agreement, Exhibit SK-2 to the Affidavit of Soula Kontomichalos affirmed 30 September 2010 was validly executed by or on behalf of the parties.

2. The terms of the Heads of Agreement to be in the best interests of the applicant.

THE COURT ORDERS THAT:

1. Pursuant to s.32 of the Federal Magistrates Act (1999) the Court makes orders in terms of the handwritten Heads of Agreement, Exhibit SK-2 to the Affidavit of Soula Kontomichalos affirmed 30 September 2010.

2. The originating application filed 22 January 2010 is dismissed.

3. The applications in a case filed 30 September 2010 and 27 October 2010 are dismissed.

4. All party’s applications for costs are dismissed.

5. All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 91 of 2010

JOSHUA TURNER (BY HIS NEXT FRIEND, ANJA TURNER)

Applicant

And

STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES)

First Respondent

ONCALL PERSONNEL & MANAGEMENT SERVICES PTY LTD

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore and Revised)

1. The Court finds that the Heads of Agreement, which is Exhibit SK-2 to the affidavit of Soula Kontomichalos affirmed on 30 September 2010, was validly executed by or on behalf of the parties. The applicant’s next friend has signed what is a deed, being that document. She had the authority to do so and had a solicitor, Mr Kuek, and her human rights representative, Julie Phillips, to advise her. She consulted with them before executing the agreement.

2. Pursuant to r.13.04 of the Federal Magistrates Court Rules 2001 (the “Rules”), two parties have applied for an Order in terms of the Heads of Agreement. Pursuant to r.16.01 of the Rules, the Court may at any stage give any judgment or Order, even if the claim was not made in the originating process.

3. The Court has formed the view that the Heads of Agreement should be made into an Order of this Court [Federal Court Rules Order 23,

   
   

   sub-rule.9(1)(c)]. The Court considers the terms of the Heads of Agreement were properly entered into on behalf of the applicant after  his next friend “Anja Turner” had the opportunity to consult, and did consult, with her lawyer and her human rights adviser. The Court finds the terms of the Heads of Agreement to be in the interests of the applicant.

4. The Court dismisses the applications for costs. The proceedings have resulted in Heads of Agreement being made into an order of the Court. The draft typed deed has not been made into an order of the Court. The Court has dismissed the Application in a Case by the applicant to strike matters out of the draft typed deed.

5. The Court rejects the argument that the applicant by his next friend had to make the application to have a compromise on behalf of a person with a disability to be approved. The applicant did not apply for the approval of the Heads of Agreement which is a deed between the parties. Instead, the applicant applied to vary the terms of the draft typed deed. There was no application by the applicant to approve the compromise for a disabled person. That document simply did not come into existence.

6. The Court has dismissed the Application in a Case by the State of Victoria to make an Order in terms of the typed draft deed of release [Exhibit SK3 to the affidavit of Soula Kontomichalos (supra)]. The second respondent has been in attendance because of a dispute about the terms of the draft typed deed. The application, supported by the second respondent, to make the draft typed deed into an order of the Court has been dismissed. The first and second respondent’s did not put to the applicant before today that the Heads of Agreement be made into an order of the Court.

7. The originating application filed on 22 January 2010 is dismissed because the parties have reached a compromise in settlement of that matter, which had been approved by the Court.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Turner FM

Date: 1 December 2010